McLaughlin, Kalodner and Stahl, Circuit Judges. Kalodner, C.j., dissenting.
This appeal arises because of the discharge of two employees of petitioner, the Hugh H. Wilson Corporation, a manufacturer of hair curlers and bobby pins in Sunbury, Pennsylvania, after they had engaged in certain activities in response to the employer's announcement that instead of making contributions to the corporation's profit-sharing plan for the prior year 1966, the profits would be used for the purchase of new machinery and equipment. The employees, claiming they were discharged for engaging in protected concerted activities in violation of the National Labor Relations Act, filed unfair Labor practice charges with the National Labor Relations Board.
Following several days of hearings, the trial examiner, in a well-reasoned and well-documented decision,*fn1 approved by the Board,*fn2 upheld the unfair labor practice charges and ordered
(a) the reinstatement of one of the employees, Moll,
(b) certain payments to the estate of the other employee, Gibson,*fn3 and
(c) other affirmative action by the employer.
The petitioner-corporation seeks to set aside the Board order approving the decision of the trial examiner, contending, inter alia, that the employees were properly fired for cause and that they had not been engaged in concerted activities but rather had "acted individually and independently . . . reflecting solely their own views." (Petitioner's brief, p.6) The Board has countered with a request for enforcement of its order.
It does not appear to be disputed that the subject matter of the discharged employees' protest, the company's profit-sharing plan, concerns a term or condition of employment. Nor is it contended that the activities of the employees, if concerted, were unlawful.
The trial examiner's decision adopted by the Board held that the petitioner was guilty of an unfair labor practice for interfering with employee conduct found to be concerted activities under § 7 of the National Labor Relations Act which provides, in pertinent part:
Employees shall have the right . . . to engage in . . . concerted activities . . . for the purpose of . . . mutual aid and protection. 29 U.S.C.A. § 157.*fn4
The lines defining this right have of necessity been painted with broad strokes. To protect concerted activities in full bloom, protection must necessarily be extended to "intended, contemplated or even referred to" group action, Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964), discussed further infra, lest employer retaliation destroy the bud of employee initiative aimed at bettering terms of employment and working conditions.
The mantle of protection of concerted activities, the various circuit courts have held,*fn5 extends to both union and non-union employees.*fn6
Section 7 of the Act is designed to guarantee to employees the fundamental right to present grievances to their employer to secure better terms and conditions of employment, even if the presentation of a grievance requires a work stoppage: NLRB v. Washington Aluminum Co., 370 U.S. 9, 8 L. Ed. 2d 298, 82 S. Ct. 1099 (1962); NLRB v. Serv-Air, Inc., 401 F.2d 363 (10th Cir. 1968).
Although a single employee's encouragement of individual fellow workers to present grievances has not been protected, Indiana Gear Works v. NLRB, 371 F.2d 273 (7th Cir. 1967); Mushroom Transportation Co. v. NLRB, supra, Joanna Cotton Mills Co. v. NLRB, 176 F.2d 749 (4th Cir. 1959); Union Carbide Corp., 171 NLRB 1651, 171 NLRB No. 199, 69 LRRM 1086 (1968), a single employee attempting to induce fellow workers to join in a petition regarding a common grievance is protected, Salt River Valley Users' Ass'n. v. NLRB, 206 F.2d 325 (9th Cir. 1953); Joanna Cotton Mills Co. v. NLRB, supra, as is the right of an individual employee presenting grievances on behalf of others, NLRB v. Guernsey-Muskingum Elec. Co-op., Inc., 285 F.2d 8 (6th Cir. 1960). Indeed, the Ninth Circuit, applying the Third Circuit test set out in Mushroom Transportation Co. v. NLRB, supra, held that a single non-union employee's verbal support of a threatened strike by the union was protected and that the employee's discharge by the employer was an interference with his § 7 rights. Signal Oil and Gas Co. v. NLRB, 390 F.2d 338 (9th Cir. 1968). In Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1365 (4th Cir. 1969), the court said:
"Mere griping" about a condition of employment is not protected, but when the "griping" coalesces with expression inclined to produce group or representative action, the statute protects the activity: Mushroom Transportation Co. v. NLRB, supra. The stimulus which caused the coalescence of a grievance and concert of action may, of course, be initiated by the employee, but the coalescence may also be triggered by an action of or a failure to act by management.
In NLRB v. Washington Aluminum Co., supra, several employees had complained individually to management about the lack of heat in the plant. Management failed to remedy the situation. On an especially cold morning, several employees thought it was too cold to work. After a brief discussion among themselves, and without notifying any member of management who might be able to effect a remedy, the employees, in unison, walked out of the plant. Those who walked out were discharged. The walkout, the only concerted activity, was in response to a situation which management had failed to remedy; it was held by the Supreme Court to be protected under the Act.
In Modern Motors, Inc. v. NLRB, 198 F.2d 925 (8th Cir. 1952), the protected activity was a refusal to go back to work. Indeed, the suggestion that the employees leave the premises came from the employer:*fn7
The concerted activities involved were prompted by the employer's failure at Christmas time in 1949 to pay an employees' bonus as had been done during a number of preceding years. On the morning following the Christmas holiday, eleven of the employees in the employer's shop insisted upon an opportunity to discuss the matter with the president of the Company. Two of their number acted as spokesmen for the group. The president declared that the Company could not afford to pay a bonus that year and directed all of them either to go back to work or leave the premises. The two spokesmen replied that they felt that they were entitled to seek legal advice. They left the shop and went downtown to find and consult with a lawyer. They suggested to the other nine that they not go back to work until their return. When the president came out into the shop a few minutes later and learned that the two spokesmen had left the premises, he announced that they were fired and ordered the rest to "go to work or get your tools and leave the building." All of the nine, except one, returned to their jobs. . . . When the two spokesmen came back . . . [all three were fired. The Board's order, including reinstatement and back pay for the three discharged employees, was enforced.] 198 F.2d 925-926.
The cohesiveness of the concerted activity need not be more than the suggestion of group action. In fact, the existence of a "group" need not be communicated to management, as asserted by petitioner in its brief (p. 39).*fn8 The Sixth Circuit has stated that, " The mere fact that the . . . [employees] did not formally choose a spokesman or that they did not go together to see . . . [management's representative] does not negative concert of action. It is sufficient to constitute concert of action if from all of the facts and circumstances in the case a reasonable inference can be drawn that the men involved considered that they had a grievance . . ." NLRB v. Guernsey Muskingum Elec. Co-op., Inc., supra at 12.*fn9
The grievance in Guernsey involved the appointment of Larry Miller, a son-in-law of a company executive, as foreman. His father-in-law announced the appointment to some of the employees as follows: "Now, Larry don't know a damn thing about it, but he is going to be your foreman." The other employees, who felt that one of their own number would be more qualified for the supervisory post, discussed the problem among themselves, and at various times each man in the crew went individually to complain to a management representative. The company's general manager was "damned unhappy" about the complaints of the employees so he fired one of them for "cause." This was held to be an unfair labor practice. Even though the employees had not communicated that a "group" had existed, and management may have inferred that it was dealing with individual gripes, the consensus of the affected, unhappy employees was sufficient to support a finding that the activity was in concert and, therefore, protected.
In short, the law recognizes that employees have a legitimate interest in "acting concertedly to make their views known to management without being discharged for that interest." NLRB v. Phoenix Mut. Life Ins. Co., 167 F.2d 983, 988 (7th Cir.), cert. denied, 335 U.S. 845, 93 L. Ed. 395, 69 S. ...